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____

CHAPTER 256

_____

THE PROCEEDS OF CRIME ACT

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY PROVISIONS

Section Title

1. Short title.

2. Application.

3. Interpretation.

4. Meaning of "conviction", etc., of offence.

5. Meaning of "absconding".

6. Meaning of "serious offence".

7. Meaning of "dealing with property".

8. Appropriate court in relation to serious offence.

PART II

FORFEITURE AND CONFISCATION

Application for Confiscation Order

9. Application for confiscation order.

10. Notice of application.

11. Amendment of application.

12. Making of confiscation order where person has absconded.

13. Procedure on application.

Forfeiture Orders

14. Forfeiture orders.

15. Effects of forfeiture order.

16. Effect of forfeiture order on third parties.

17. Discharge of forfeiture order on appeal or on quashing of conviction.

18. Registered foreign forfeiture orders.

PART III

PECUNIARY PENALTY ORDERS

19. Application of Part III.

20. Special provision relating to specified offences.

21. Pecuniary penalty orders.

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22. Assessment of pecuniary penalty.

23. Court may lift corporate veil.

24. Amounts paid in respect of registered foreign pecuniary penalty orders.

PART IV

FORFEITURE IN RESPECT OF SPECIFIED OFFENCES

25. Forfeiture of restrained property in relation to specified offences.

26. Recovery of property to which section 25 applies.

27. Effect of quashing of conviction.

28. Person with interest in forfeited property may buy back interest.

29. Buying out other interests in forfeited property.

30. Forfeiture where person cannot be brought before court.

PART V

CONTROL OF PROPERTY LIABLE TO CONFISCATION

Power of Search and Seizure

31. Powers to search for and seize tainted property.

31A Freezing of an account.

32. Search warrants in relation to tainted property.

33. Search warrant may be granted by telephone.

34. Searches in emergencies.

35. Responsibility for seized property.

36. Return of seized property.

37. Search for and seizure of tainted property in relation to foreign offences.

Restraining Orders

38. Restraining orders.

39. Grounds for issuing a restraining order.

40. Notice of application for restraining order.

41. Persons who may appear and adduce evidence.

42. Notice of restraining orders.

43. Court may make further orders.

44. Trustee to discharge pecuniary penalty order.

45. Charge on property subject to restraining order.

46. Registration of restraining orders.

47. Contravention of restraining orders.

48. Duties of trustee.

49. Protection of trustee from personal liability.

50. Remuneration and expenses of trustee.

51. Court may revoke restraining orders.

52. When restraining order ceases to have effect.

53. Interim restraining order in respect of foreign offence.

54. Registered foreign restraining orders.

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55. Trustee to take control of property in relation to registered foreign

restraining order.

56. Undertaking by the Attorney-General.

57. Discharge of registered foreign pecuniary penalty.

PART VI

INFORMATION GATHERING POWERS

Production Orders

58. Production orders.

59. Variation of production order.

60. Failure to comply with production order.

61. Production orders in relation to foreign offences.

Search Powers

62. Powers to search for property-tracking document.

63. Search warrant for property-tracking document.

63A. Investigation of bank account.

63B. Placing under surveillance.

63C. Protection of investigators.

66D. Leave of the court.

64. Search warrants in relation to foreign offences.

Monitoring Orders

65. Monitoring orders.

66. Existence and operation of monitoring order not to be disclosed.

67. Monitoring orders in relation to foreign offences.

Obligations of Financial Institutions

68. Repealed.

69. Repealed.

70. Repealed.

PART VII

MISCELLANEOUS PROVISIONS

71. Obstruction of Justice prohibited.

72. Prohibition in dealing in tainted property.

73. Conduct of directors, officers, employees or agents.

74. Dealings with forfeited property.

75. Standard of proof.

76. Appeals.

77. Costs.

78. Operation of other laws not affected.

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79. Regulations.

CHAPTER 256

THE PROCEEDS OF CRIME ACT

An Act to make better provisions for dealing with proceeds of crime

[ 1st May, 1994]

[G.N. NO. 299 of 1994]

[1st May, 1994]

[G.N. No. 299 of 1994]

Acts Nos.

25 of 1991

9 of 1995

21 of 2002

15 of 2007

PART I

PRELIMINARY PROVISIONS

Short title

1. This Act may be cited as the Proceeds of Crime Act.

Application

2.-(1) This Act shall apply to Tanzania Zanzibar as well as to

Mainland Tanzania. (2) This Act, other than section 57, shall not apply to the

conviction of a person of an offence if he was convicted of it before the

commencement of this Act. Interpretation 3.-(1) In this Act, unless the context requires otherwise- "account" means any facility or arrangement through which a financial

institution accepts deposits or allows withdrawals and includes a

facility or arrangement for- (a) a fixed term deposit box; or

(b) a safety deposit box; "agent" includes, if the agent is a body corporate, the officers and agents

of that body corporate; "appropriate officer" means the Attorney-General or a person in a

category of persons declared by the regulations to be within this

definition; "approved" means approved by the Minister in writing for the purposes

of the provision in which the term occurs; Act No. 15

of 2007

s. 4

“bank” has the meaning ascribed to it under the Banking and Financial

Institutions Act, 2006;

"benefit" includes a service or an advantage;

"building society" means a society registered or incorporated as a

building society, co-operative housing society or similar society

under a law for the time being in force relating to such societies;

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"confiscation order" means a forfeiture order or a pecuniary penalty

order;

"corresponding law" means a law that is declared to be a law that

corresponds to this Act; “director" in relation to a financial institution or a body corporate means- (a) if the institution or body corporate is incorporated for a

public purpose by an Act of Parliament or House of

Representatives, a constituent member of the institution

or body corporate; (b) any person occupying or acting in the position of director

of the institution or body corporate by whatever name

called and whether or not validly appointed to occupy or

duly authorized to act in the position; and (c) any person in accordance with whose directions or

instructions the Directors of the institution or body

corporate are accustomed to act;

"encumbrance" in relation to property, includes any interest, mortgage,

charge, right, claim or demand in respect of the property;

"executive officer" in relation to a financial institution or body corporate,

means any person, by whatever name called and whether or not

he is a director of the institution or body corporate, who is

concerned, or takes part in the management of the institution or

body corporate; Act No. 15

of 2007 s.2 "financial institutions" has the meaning ascribed to it in the Banking and

Financial Institutions Act, 2006. “financial transaction” means- (a) the opening, operating or closing of an account held with

a financial institution; (b) the opening or use of a deposit box held by a financial

institution; (c) the telegraphic or electronic transfer of funds by a

financial institution on behalf of one person to another

person; (d) the transmission of funds between the United Republic,

and foreign countries or between foreign countries on

behalf of any person; or (e) an application by any person for, or the receiving of, a

loan from a financial institution; (f) receiving or making a monetary or financial gift; (g) selling and buying of gold, foreign currency and

negotiable instruments. "foreign forfeiture order" means a forfeiture order made under the law of

a foreign country and registered in the United Republic in terms

of section 32 of the Mutual Assistance Act, for enforcement

against property believed to be located in the United Republic in

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respect of a foreign serious offence; "foreign pecuniary penalty order" means an order made under the law of

a foreign country and registered in the United Republic in terms

of section 32 of the Mutual Assistance Act, and which imposes a

pecuniary penalty in respect of a foreign serious offence, but does

not include an order for the payment of money by way of

compensation, restitution or damages; "foreign restraining order" means an order made under the law of a

foreign country and registered in the United Republic in terms of

section 32 of the Mutual Assistance Act, for enforcement against

property believed to be located in the United Republic in respect

of a foreign serious offence; "foreign serious offence" means a serious offence committed against the

law of a foreign country;

"forfeiture order" means an order made in terms of section 14;

"the Government" means the Government of the United Republic or the

Revolutionary Government of Zanzibar, as the case may be; (a) a legal or equitable estate or interest in the property; or

(b) a right, power or privilege in connection with the property,

whether present or future and whether vested or

contingent; "law enforcement agency" means the Police Force, and includes any

person authorised in writing by the Inspector-General of Police to

perform investigative or monitoring duties under this Act; Act No.15

of 2007

s.4

CAP. 423

R.E. 2002

"magistrate" means a resident magistrate;

"Minister" means the Minister for the time being responsible for legal

affairs;

"money laundering offence " has the meaning ascribed to it in the Anti-

Money Laundering Act, 2006 ; "monitoring order" means an order made under section 65;

"the Mutual Assistance Act" means the Mutual Assistance in Criminal

Matters Act ; "narcotic drugs and psychotropic substances" means-

Act No.15

of 2007

s. 4

(a) prohibited drugs in terms of the law for the time being in

force relating to narcotic drugs and psychotropic

substances;

(b) a substance declared by or under any law to be a substance

to which this definition applies; "officer" means a director, secretary, executive officer or employee;

"ordinary arrestable offence" means an arrestable offence that is

not a serious offence;

"penalty amount" in relation to a pecuniary penalty order against a

person, means the amount that the person is liable to pay under the order; "pecuniary penalty order" means an order under section 22;

"police officer" means any member of the police force of or above the

rank of corporal;

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"premises" includes- (a) a structure, building, aircraft, vehicle or vessel;

(b) a place, whether enclosed or built upon or not; and

(c) a part of premises, including premises of a kind referred to

in paragraph (a) or (b); "proceeds" in relation to an offence, means any property that is derived

or realised, directly or indirectly by any person from the

commission of the offence;

"proceeds of an offence" or "profits of crime" shall be construed

accordingly;

"proceeds of crime" means any property derived or realized, directly or

indirectly, by any person out of the commission of a serious

offence and includes- Act No.15

of 2007

s.4

(a) at a proportional basis, property derived or realized

directly from the commission of that offence or was

later successively converted, transformed or

intermingled into another property; and (b) capital, income or other economic gains derived or

realized from such property.

Act No.15

of 2007

s. 4

"production" includes growing and manufacture;

"production order" means an order made under section 62;

"property" means real or personal property of every description, whether

situated in the United Republic or elsewhere and whether tangible

or intangible and includes an interest in any such real or personal

property;

"property-tracking document" means a document relevant for–

(a) identifying, locating or quantifying the property of a

person who committed a serious offence;

(b) identifying or locating any document necessary for the

transfer of the property of a person who committed a

serious offence;

(c) identifying, locating or quantifying tainted property in

relation to a serious offence; or

(d) identifying or locating any document necessary for the

transfer of tainted property in relation to a serious offence; “registrable property" means property the title to which is passed by

registration on a register kept pursuant to a provision of any law;

"relevant application period" in relation to a person's conviction of an

arrestable offence, means the period of six months after- (a) where the person is to be taken to have been convicted of

the offence by reason of section 4(1)(a), the day on which

the person was convicted of the offence;

(b) where the person is to be taken to have been convicted of

the offence by reason of section 4(1)(b), the day on which

the person was discharged without conviction;

(c) where the person is to be taken to have been convicted of

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the offence by reason of section 4(1)(c), the day on which

the court took the offence into account in passing sentence

for the other offence referred to in paragraph (c); or

(d) where the person is to be taken to have been convicted of

the offence by reason of section 4(1)(c), the day on which

the person is to be taken to have absconded in connection

with the offence; "relevant offence", in relation to tainted property, means an offence by

reason of the commission of which the property is tainted

property;

"restraining order" means an order made under section 38;

"serious narcotic drugs and psychotropic substances offence" means any

offence relating to narcotic drugs and psychotropic substances- (a) which is punishable in the United Republic or in a foreign

country by imprisonment for a period of not less than three

years or by a more severe punishment; or

(b) the market value of the property derived or obtained from

the commission of which is or is likely to be not less than

two million shillings or such greater or lesser amount as

may be prescribed;

Act 15

of 2007

s.4

“Serious offence” means money laundering and includes a predicate;

"specified offence" means- (a) serious narcotic drugs and psychotropic substances

offence;

(b) money-laundering contrary to section 71;

(c) any other offence which the Minister may, by order

published in the Gazette, prescribe as such, subject to

approval by resolution of the National Assembly;

Cap 254

(d) conspiracy to commit, or aid, abet, counsel or procure the

Commission of an offence referred to in paragraphs (a), (b)

or (c);

(e) assisting another person to dispose of the proceeds of an

offence referred to in paragraph (a); or

(f) attempting to commit an offence referred to in paragraphs

(a), (b) or (c);

"tainted property", in relation to a serious offence, means-

(a) any property used in, or in connection with, the

commission of the offence;

(b) any proceeds of the offence; or

(c) any property in the United Republic which is the proceeds

of a foreign serious offence in respect of which an order

may be registered in terms of Part VI of the Mutual

Assistance Act; and when used without reference to a particular offence means

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tainted property in relation to an arrestable offence; "trustee" means a trustee appointed by the High Court in terms of

paragraph (b) of subsection (2) of section 38;

"unlawful activity" means an act or omission that constitutes an offence

against any law for the time being in force in the United

Republic. (2) Any reference in this Act to a person being charged with an

offence is a reference to an information being laid against the person for

the offence whether or not–

(a) summons to require the attendance of the person to answer

the information has been issued; or

(b) a warrant for the arrest of the person has been issued.

(3) A reference in this Act to a benefit derived, directly or

indirectly, by another person at the request or direction of the first

person. (4) Any reference in this Act to the property of a person includes

a reference to property in respect of which the person has a beneficial

interest.

(5) A reference in this Act to acquiring property, or an interest in

property, for sufficient consideration is a reference to acquiring the

property or the interest for a consideration that is sufficient and that,

having regard solely to commercial considerations, reflects the value of

the property or the interest.

(6) For the purposes of this Act, a person shall not be regarded as

a director within the meaning of paragraph (c) of the definition of

"director" in subsection (1) by reason only that the director acts on advice

given by him in the proper performance of the functions attaching to his

professional capacity or to his business relationship with the directors of

the financial institution or body corporate, as the case may be.

Meaning of

“conviction”, etc

of offence

4.-(1) For the purposes of this Act a person shall be taken to be

convicted of an offence if-

(a) he is convicted, whether summarily or otherwise, of the

offence;

(b) he is charged with, and found guilty and convicted of the

offence but is discharged conditionally or unconditionally

or pardoned; or

(c) the person absconds in connection with the offence. (2) This section shall not apply to a foreign serious offence.

Meaning of

“absconding” 5. For the purposes of this Act, except section 4, a person shall

be taken to abscond in connection with an offence if and only if- (a) an information is laid alleging the commission of the

offence by the person;

(b) a warrant for the arrest of the person is issued in relation to

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that information; and

(c) one of the following occurs, namely- (i) the person dies before the warrant is executed;

(ii) at the end of a period of six months from the date

of issue of the warrant– (aa) the person cannot be found; or

(bb) the person is, for any other reason, not

amenable to justice and, if the person is

outside the United Republic, extradition

proceedings are not instituted; (iii) at the end of the period of six months from the

date of issue of the warrant– (aa) the person is, by reason of being

outside the United Republic, not

amenable to justice; and (bb) extradition proceedings are

instituted, and subsequently those

proceedings terminate without an

order for the person's extradition

being made.

Meaning of

serious offence 6. In this Act, the expression "serious offence" means–

Act No21 of

2007

(a) any dealing which amounts to drug trafficking under the

law for the time being relating to drugs;

(b) any specified offence;

(c) any offence against the Prevention of Terrorism Act, 2002;

(d) any offence which the Minister may, by order published in

the Gazette, prescribe as such, subject to approval by

resolution of the National Assembly.

Meaning of

“dealing with

property”

7. For the purposes of this Act, dealing with property of a person

includes-

(a) if a debt is owed to that person, making payment to any

person in reduction of the amount of the debt;

(b) removing the property from the United Republic;

(c) receiving or making a gift of the property.

Appropriate

court in relation

to serious

offence

8. Where a person is convicted of a serious offence before any

court other than a Primary Court that court shall be the appropriate court

in relation to the conviction.

PART II

FORFEITURE AND CONFISCATION

Application for

confiscation 9 -(1) Where a person is convicted of a serious offence, the

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order Attorney-General may, subject to subsection (2), apply to the convicting

court, or to any other appropriate court, not later than six months after the

conviction of the person, for- (a) a forfeiture order against any property that is tainted

property in respect of the offence; or

(b) a pecuniary penalty order against the person in respect of

any benefit derived by the person from the commission of

the offence. (2) The Attorney-General shall not, except with the leave of the

court, make an application in terms of subsection (1) for a forfeiture

order or a pecuniary penalty order– if an application has previously been made under that subsection or in

terms of any other enactment; and the application has been finally determined on the merits. (3) The court shall not grant leave in terms of subsection (2)

unless it is satisfied that- (a) the tainted property, or the benefit to which the new

application relates was identified only after the first

application was determined;

(b) necessary evidence became available only after the first

application was determined; or

it is otherwise in the interests of justice to grant the leave. (4) An application may be made under this section in relation to

one or more than one arrestable offence. (5) An application may be made in terms of this section for a

pecuniary penalty order in respect of an offence even if section 26

applies to the offence.

Notice of

application 10.-(1) Where the Attorney-General makes an application in

terms of subsection (1) of section 9 for a forfeiture order against property

in respect of a person's conviction of an offence- Act No. 15 of

2007 .S. 6 (a) the Attorney-General shall within fourteen days give

written notice of the application to the person or to any

other person he has reason to believe may have an interest

in the property;

(b) the person, and any other person who claims an interest in

the property, may appear and adduce evidence at the

hearing of the application; and

(c) the court may, at any time before the final determination of

the application, direct the Attorney-General to give notice

of the application to a specified person or class of persons

who appear to have an interest in the property in a manner

and within such time as the court considers appropriate. (2) Where the Attorney-General makes an application for a

pecuniary penalty order against a person, (a) the Attorney-General shall within fourteen days give the

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person written notice of the application; and

(b) the person may appear and adduce evidence at the hearing

of the application.

Amendment of

application

11.-(1) Subject to subsection (2), where the Attorney-General

applies for a confiscation order, the court hearing the application may

amend the application at the request, or with the consent, of the

Attorney-General. (2) The court may not amend an application so as to include

additional property in an application for a forfeiture order or an

additional benefit in an application for a pecuniary penalty order unless it

is satisfied that- (a) the property or the benefit was not reasonably capable of

identification when the application was originally made; or

(b) necessary evidence became available only after the

application was originally made. (3) Where the Attorney-General requests to amend an application

for a forfeiture order and the amendment has or would have the effect of

including additional property in the application for the forfeiture order,

then- Act No. 15

of 2007

s.7

(a) the Attorney-General shall give within fourteen days

written notice of the request to amend to any person who

he has reason to believe may have an interest in the

property to be included in the application for the forfeiture

order; and

(b) any person who claims an interest in the property to be

included in the application for the forfeiture order may

appear and adduce evidence at the hearing of the request to

amend.

Act No. 15

of 2007 .S. 6

(4) Where the Attorney-General applies to amend an application

for a pecuniary penalty order against a person and the effect of the

amendment has or would be to include an additional benefit in the

application for the pecuniary penalty order, he shall within fourteen

days, give that person a written notice of the application to amend.

Making of

confiscation

order where

person has

absconded

12. Where a person is, arrestable by reason of section 4(1)(c),

taken to have been convicted of arrestable able offence, a court shall not

make a confiscation order in reliance on the person's conviction of the

offence unless the court is satisfied, on the balance of probabilities, that

the person has absconded and- (a) the person has been committed for trial for the offence; or

(b) the court is satisfied that having regard to all the evidence

before it, a reasonable court could lawfully find the person

guilty of the offence.

Procedure on

application 13.-(1) Where an application is made to a court for a confiscation

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order in respect of a person's conviction of a serious offence, the court

may, in determining the application, have regard to the transcript record

of any proceedings against the person in relation to the offence. (2) Where an application is made for a confiscation order the

court before which the person was convicted and the court has not, at the

time the application is made, passed sentence on the person for the

offence, the court may, if satisfied that it is reasonable to do so in all the

circumstances, defer passing sentence until it has determined the

application for the confiscation order. (3) Where a person is to be taken to have been convicted of an

offence by reason of section 4(1)(c), and application is made to a court

for a confiscation order in respect of the conviction, the reference in

subsection (1) to a proceeding against the person for the offence shall

include a reference to a proceeding against the person for the other

offence referred to in that paragraph.

Forfeiture Orders 14.-(1) Where the Attorney-General applies to a court for a

forfeiture order under section 9 against property in respect of a person's

conviction of an offence and the court is satisfied that the property is

tainted property in respect of the offence, the court may if it considers it

appropriate, order that the property or such of the property as it may

specify in the order, be forfeited to the United Republic. (2) Where the court orders that property other than money is

forfeited to the United Republic, it shall specify in the order the amount

that it considers to be the value of the property at the time the order is

made. (3) In granting an application for a forfeiture order in respect of

any property, the court may have regard to- (a) any hardship that may reasonably be expected to be caused

to any person by the operation of such an order;

(b) the use that is ordinarily made, or was intended to be

made, of the property; and

(c) the gravity of the offence concerned. (4) Any evidence given at the hearing of the application for a

forfeiture order in respect of any property that the property concerned

was in the possession of the convicted person at the time of, or

immediately after, the commission of the offence and no evidence is

given to show that the property was not used in, or in connection with,

the commission of the offence, the court shall assume that the property

was used in, or in connection with, the commission of the offence. (5) In granting an application for a forfeiture order, the court may

give any directions necessary or convenient for giving effect to the order,

including, without limiting the generality of the foregoing, directions to

an officer of the court to do anything necessary and reasonable to obtain

possession of any document necessary for the transfer of any property

subject to registration in the Registry of Titles.

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(6) In granting a forfeiture order the court may, if it is satisfied

that it would be in the public interest for a person's interest in the

property to be transferred to him, determine the nature, extent and value

of the interest and declare that the forfeiture order may, to the extent to

which it relates to the interest, be discharged in accordance with section

30.

Effects of

forfeiture order

15.-(1) Subject to subsection (2), where a court makes a forfeiture

order against property, the property shall vest in the United Republic.

(2) Where a forfeiture order is made against property subject to

registration in the Registry of Titles any rights in the property shall lie

with the United Republic until the registration is effected.

(3) The Treasury Registrar shall be registered as owner of any

property subject to a forfeiture order and the Minister shall do or

authorise to be done anything necessary or convenient to obtain the

registration of the Treasury Registrar as owner, including the execution

of an instrument required to be executed by a person transferring an

interest in property of that nature.

Effect of

forfeiture order

on third parties

16.-(1) Where an application for a forfeiture order is made against

property, any person who has an interest in the property may, before the

forfeiture order is made, apply to the court for an order under subsection

(6).

(2) Subject to subsections (3) and (7), where a forfeiture order

against property has been made, any person who has an interest in the

property may apply to the court for an order under subsection (6).

(3) A person who was given notice of an application for a

forfeiture order or who appeared at the hearing of the application shall

not make an application to court in terms of subsection (2) except with

the leave of the court.

(4) The leave of the court referred to in subsection (3) may be

granted if the court is satisfied that there are special grounds for granting

the leave.

(5) Without limiting the generality of subsection (4), the court

may grant a person leave to apply if it is satisfied that the evidence which

the person intended to adduce in connection with the application under

subsection (2) was not available to him at the time of the hearing of the

application.

(6) Where a person applies to a court for an order under this

subsection in respect of his interest in property against which an

application for a forfeiture order or a forfeiture order has been made and

the court is satisfied that- (a) the applicant was not in any way involved in the

commission of the offence concerned; or

(b) if the applicant acquired his interest at the time, or after the

15

commission of the offence, the applicant did so- (i) for sufficient value; and (ii) without knowing and in circumstances such as not to

arouse reasonable suspicion that the property was, at the

time of the acquisition, tainted property,the court shall

make an order for the transfer of the interest by the

Treasury Registrar to the applicant or for the payment by

the Treasury Registrar to the applicant of an amount

equal to the value of the interest, as the court thinks fit. (7) Subject to subsection (8), an application under subsection (2)

shall be made before the expiration of a period of six months

commencing on the day on which the forfeiture order is made.

(8) Where a forfeiture order is made against property, the court

that made the order may, on application being made to it, grant a person

claiming an interest in the property leave to apply in terms of subsection

(2), after the expiration of the period referred to in subsection (7) if it is

satisfied that the person's failure to make his application within that

period was not due to any neglect on his part. (9) Any person who makes an application in terms of subsection

(1) or (2) shall notify the Attorney-General. (10) The Attorney-General shall be a party to proceedings upon

an application in terms of subsection (1) or (2).

Discharge of

forfeiture order

on appeal or on

quashing of

conviction

17.-(1) (1) A forfeiture order against property shall be discharged

on the quashing of the conviction upon which the forfeiture order is

based.

(2) Where a forfeiture order against property is discharged in

terms of subsection (1) or on an appeal against the making of the order,

the Attorney-General shall– (a) as soon as practicable after the discharge of the order, give

written notice of the discharge of the order to any person

whom he has reason to believe had an interest in the

property immediately before the making of the order; or (b) if required by the court, publish in the Gazette a notice of

the discharge of the order in such manner and within such

time as the court considers appropriate. (3) A notice referred to in subsection (2) shall specify, in

accordance with subsection (4), the manner in which any person who

claims an interest in the property shall apply for the transfer of the

interest to the person. (4) Where a forfeiture order is discharged in terms of subsection

(1) or on appeal against the making of the order, any person who,

immediately before the making of the forfeiture order, claimed an

interest in the property may apply to the Attorney-General, in writing, for

the transfer of the interest to him and on receipt of the application, the

16

Attorney-General shall- (a) where the interest is vested in the Treasury Registrar,

arrange for the transfer of the interest to the person; or

(b) in any other case, pay to the person an amount equal to the

value of the interest. (5) Where the Attorney-General is to arrange for the transfer of

property to a person, he may do or authorise to be done anything

necessary or convenient to effect the transfer, including the execution of

any instrument and the making of an application for registration of an

interest in the property.

Registered

foreign forfeiture

orders

18.-(1) Where a foreign forfeiture order is registered with the

High Court in terms of Part VI of the Mutual Assistance Act, this Part

shall, mutatis mutandis, apply in relation to the foreign order. (2) Any property in relation to which a foreign forfeiture order

has been registered in terms of subsection (1) may be disposed of or

otherwise be dealt with in accordance with any direction of the Attorney-

General or of a person authorised by the Attorney-General in writing for

that purpose.

PART III

PECUNIARY PENALTY ORDERS

Application of

Part III 19. This Part shall apply to-

(a) property that comes into the possession, or under the

control, of a person, whether within or outside the United

Republic and whether before or after the commencement

of this Act; and

(b) benefits that accrued to a person, whether within or outside

the United Republic and whether before or after the

commencement of this Act. Special provision

relating to

specified

offences

20. An application for a pecuniary penalty order against a person

in respect of his conviction of a specified offence shall not be granted by

a court before the expiry of a period of six months commencing on the

date of the conviction upon which the application is based or after the

expiry of a period of twelve months from that date. Pecuniary

penalty orders

21.-(1) Where an application is made to a court for a pecuniary

penalty order in respect of benefits derived by a person from the

commission of an offence and the court is satisfied that the person

derived benefits from the commission of the offence, the court may, in

terms of section 22, assess the value of the benefits so derived and order

that person to pay to the Treasury Registrar, subject to subsections (2)

and (3), a pecuniary penalty equal to the value of the benefits assessed.

(2) Where property that is the proceeds of an offence has been

17

forfeited in terms of this Act or any other enactment or a forfeiture order

is proposed to be made against property that is the proceeds of an

offence, the penalty referred to in subsection (1) shall be reduced by an

amount equal to the value as at the time of the making of the pecuniary

penalty order of the property forfeited.

(3) Where any amount of tax, whether under the law of Tanzania

or a foreign country, has been paid by a person and that tax is attributable

in whole or in part to the benefits in respect of which the pecuniary

penalty order is being made, such amount may, if the court so directs, be

deductible from the penalty assessed in terms of subsection (1).

(4) The court may reduce the amount payable by a person under a

pecuniary penalty order made in relation to an offence by an amount

equal to the amount paid by the person by way of restitution,

compensation, damages or a fine in relation to the offence.

(5) In calculating the amount payable under a pecuniary penalty

order, if the court took into account a forfeiture of, or a proposed

forfeiture order in respect of, property and an appeal against the

forfeiture order is allowed or the proceedings for the proposed forfeiture

order are terminated before the order is made, the Attorney-General may

apply to the court for a variation of the pecuniary penalty order to

increase the pecuniary penalty by the value of the property concerned

and the court may vary the order accordingly.

(6) In calculating the amount payable under a pecuniary penalty

order, if the court took into account an amount of tax paid by the person

and an amount is repaid or refunded to the person in respect of that tax,

the Attorney-General may apply to the court for a variation of the

pecuniary penalty order to increase the pecuniary penalty by the amount

repaid or refunded and the court may vary the order accordingly.

(7) Any amount payable by a person to the United Republic in

terms of a pecuniary penalty order shall be a civil debt due to the United

Republic and shall be recoverable by civil process. Assessment of

pecuniary

penalty

22-(1) For the purposes of a pecuniary penalty order against a

person (hereinafter referred to as "the defendant"), the value of the

benefits derived by the defendant from the commission of an offence

shall be assessed by the court having regard to- (a) the amount of money or value of property that came into

the possession or under the control of- (i) the defendant; or

(ii) any other person at the request or direction of the

defendant, by reason of the commission of the

offence; (b) the value of any other benefit gained by- (i) the defendant; or

(ii) by reason of the commission of the offence; (c) if the offence consisted of the doing of an act or thing in

18

relation to narcotic drugs and psychotropic substances- (i) the market value, at the time of the offence, of

similar or substantially similar narcotic drugs and

psychotropic substances; and

(ii) the amount that was, or the range or amounts that

were, ordinarily paid for doing a similar or

substantially similar act or thing; (d) the value of the defendant's property before and after the

commission of the offence; and

(e) the defendant's income and expenditure before and after the

offence. (2) In assessing the value of a benefit for the purposes of this

section the court may treat as the value of the benefit the value that

benefit would have had if the benefit derived at the time the valuation is

being made and may have regard to any decline in the purchasing power

of money between the time the benefit was arrived at and the time the

valuation is being made.

(3) Where an application is made for a pecuniary penalty order

against a person's property in respect of a serious offence other than a

specified offence-

(a) if evidence is adduced that the value of the person's

property after the commission of the offence exceeded

before the commission of the offence, then the court shall

for the purposes of subsection (1) of section 23 but subject

to paragraph (b) and subsection (7), treat the value of the

benefits derived by the person from the commission of the

offences as being not less than the amount of the excess;

(b) if, following the evidence referred to in paragraph (a), the

person satisfies the court that- (i) the whole of the excess was due to causes unrelated to

the commission of the offence, paragraph (a) shall

not apply; or

(ii) a part of the excess was due to causes unrelated to

the commission of the offence, paragraph (a) shall

apply only to that part of the excess which is

related to the commission of the offence.

(4) Where an application is made for a pecuniary penalty order

against a person's property in respect of a specified offence or offences-

(a) all the property of that person at the time the application is

made; and

(b) all the property of that person at any time- (i) between the day the offence, or the earliest

offence, was committed and the day on which the

application is made; or

(ii) within the period of five years immediately before

the day on which the application is made,

19

shall, whichever is the shorter, be deemed, unless the contrary is

proved, to be property that came into the possession or under the

control of the person by reason of the commission of the specified

offence or offences. (5) A benefit shall not be taken into account for the purposes of

this section if a pecuniary penalty has been imposed in respect of the

benefit in terms of this Act or any other enactment. (6) For the purposes of this section, where the property of a

person has vested in a trustee of the person's insolvency, the property

shall be taken to continue to be the property of the person. (7) At the hearing of an application for a pecuniary penalty order,

a police officer who has experience in the investigation of narcotic drugs

and psychotropic substances offences may testify, to the best of his

information, knowledge and belief- (a) as to the market value of narcotic drugs and psychotropic

substances at a particular time or during a particular

period;

(b) as to the price, or range of prices, paid at a particular

period for the doing of an act or thing in relation to

narcotic drugs and psychotropic substances, notwithstanding any law or practice relating to hearsay evidence,

and the testimony shall be prima facie evidence of the matters

testified to. Court may lift

corporate veil 23.-(1) In assessing the value of benefits derived by a person

from the commission of any serious offence, the court may treat as

property of the person any property that, in the opinion of the court, is

subject to the effective control of the person whether or not the person

has- (a) any legal or other interest in the property; or

(b) any right, power or privilege in connection with the

property. (2) Without limiting the generality of subsection (1), the court

may have regard to-

Act No. 15

of 2007

S.10

(a) shareholdings in, debentures over or directorships of any

company that has an interest, whether direct or indirect in

the property;

(b) any trust that has relationship to or interest in the property;

(c) any family, domestic or business relationships between

persons having an interest in the property, or in any

company or trust referred to in paragraph (a) or (b), and

any other persons. (3) Where for the purposes of making a pecuniary penalty order

against a person, a court treats particular property as that person's

property pursuant to subsection (1), it may on application by the

Attorney-General make an order declaring that the property is available

20

to satisfy the order.

(4) Where the Attorney-General makes an application in terms of

subsection (3)–

(a) he shall give written notice of the application to the person

and to any other person whom he has reason to believe

may have an interest in the property; and

(b) any person referred to in paragraph (a) may appear and

adduce evidence at the hearing of the application.

Amounts paid in

respect of

registered

foreign

pecuniary

penalty orders

24. Where a foreign pecuniary penalty order is registered in a

court in the United Republic under the Mutual Assistance Act, any

amount paid, whether in the United Republic, in the foreign country in

which the order was made or elsewhere, in satisfaction of the foreign

pecuniary penalty order, shall be taken to have been paid in satisfaction

of the debt that arises by reason of the registration of the foreign

pecuniary penalty order in that court.

PART IV

FORFEITURE IN RESPECT OF SPECIFIED OFFENCES

Forfeiture of

restrained

property in

relation to

specified

offences

25.-(1) Subject to section 43(4), if at the expiration of six months

from the day of conviction a restraining order issued in respect of the

property of a person convicted of a specified offence is still in force, the

property shall be forfeited to the United Republic.

(2) Subject to subsection (3), property forfeited to the United

Republic under subsection (1) shall vest in the Treasury Registrar.

(3) Where immovable property or other property whose

ownership passes through registration is forfeited to the United Republic,

the Treasury Registrar shall be entitled to be registered as the owner of

the property and the Minister shall have power to do, or to authorise to be

done, anything necessary or convenient to effect the registration of the

Treasury Registrar as the owner, including execution of any instrument

required to be executed by a person transferring an interest in property of

that kind.

(4) Where property is forfeited to the United Republic in

accordance with this section-

(a) the property shall not, except with the leave of the court

that issued the restraining order and in accordance with

any directions the court may make, be disposed of or

otherwise dealt with by or on behalf of the Treasury

Registrar until any appeal instituted in relation to the

matter has been determined or the time for instituting an

appeal has lapsed without any appeal being instituted; and

(b) if, at the end of the period referred to in paragraph (a), the

conviction has not been quashed, the property may be

disposed of, or otherwise dealt with, in accordance with

21

any direction of the Minister or of a person authorised by

the Minister for the purposes of this paragraph.

(5) Any direction in terms of paragraph (b) of subsection (4) may

include a direction that the property shall be disposed of in accordance

with any enactment specified in the direction. Recovery of

property to

which section 25

applies

26.-(1) Where property is forfeited to the United Republic in

terms of section 25, any person who claims an interest in the property

may, subject to subsections (2) and (4), apply to the court which issued

the restraining order for an order under subsection (6) or (7).

(2) The application referred to in subsection (1) shall, subject to

subsection (3), be made before the expiry of the period of six months

commencing on the day on which the property is forfeited to the United

Republic.

(3) The court may grant a person leave to apply after the expiry of

the period referred to in subsection (2) if it is satisfied that the delay in

making the application was not due to neglect.

(4) An application for an order under subsection (6) or (7) in

relation to an interest in property shall not, except with the leave of the

court, be made by a person who was given notice of the proceedings at

the time of the application for the issue of the interdict.

(5) The court may grant a person leave in terms of subsection (4)

if it is satisfied that his failure to have the property excluded from the

restraining order was not due to any neglect on his part.

(6) Where a person applies for an order in respect of an interest in

property and the court is satisfied- (a) that the applicant was not in any way involved in the

commission of the relevant specified offence;

(b) where the applicant acquired the interest at the time of or

after the commission of the offence, that he did so lawfully

and for sufficient value; and

(c) that the property was acquired in circumstances such as

would not arouse a reasonable suspicion that the property

was tainted property,

(d) the court may make an order declaring the nature, extent

and value of the interest of the applicant and direct the

Treasury Registrar to transfer the interest to the applicant

or order the payment to the applicant by the Treasury

Registrar of an amount equal to the value of the interest. (7) Where a person applies for an order in respect of an interest in

property and the court is satisfied that it would not be contrary to public

interest for the interest to be transferred to the person and that there is no

other reason why the interest should not be transferred to the person, the

court may- (a) determine the nature, extent and value of the interest; and

22

(b) order that section 25 shall cease to operate in relation to

the interest if payment for the interest is made in terms of

section 29. Effect of

quashing of

conviction

27.-(1) Where a conviction in respect of property forfeited to the

United Republic in terms of section 25 is quashed, the Attorney-General

shall- (a) as soon as practicable after the quashing of the conviction,

give notice of the quashing of the conviction to any person

whom the Attorney-General has reason to believe may

have had an interest in the property immediately before the

property was forfeited; and

(b) if ordered to do so by the court, give written notice or

publish a notice in the Gazette of the quashing of the

conviction to a specified person or class of persons within

such time as the court may fix. (2) A notice in terms of subsection (1) shall include a statement to

the effect that a person claiming an interest in the property may apply in

terms of subsection (3) for the transfer of the interest to the person.

(3) Any person who claims to have had an interest in property

immediately before it was forfeited to the United Republic may apply to

the Minister, in writing, for the transfer of the interest to himself and on

receipt of application, the Minister shall- (a) if the interest is in respect of property which is still vested

in the United Republic, arrange for the transfer of the

interest to the person;

(b) in any other case, arrange for the payment to the person of

an amount equal to the value of the interest. (4) In arranging for the transfer of any property in terms of

paragraph (a) of subsection (3), the Minister shall have power to do, or

authorise to be done anything necessary or convenient to effect the

transfer, including the execution of any instrument. Person with

interest in

forfeited

property may

buy back interest

28.-(1) Where a court makes an order in terms of subsection (6)

of section 16 in respect of an interest in property, the payment to the

Treasury Registrar of the amount specified in the order as the value of

the interest shall discharge the forfeiture order to the extent to which it

relates to the interest.

(2) Where a court makes an order in terms of subsection (7) of

section 26, and a payment to the Treasury Registrar of an amount

specified in the order as the value of the interest is made, section 25 shall

cease to apply in relation to the interest.

(3) The Minister shall arrange for the interests referred to

subsections (1) and (2) to be transferred to the person in whom they were

vested immediately before the property was forfeited to the United

Republic and shall have power to do, or authorise to be done, anything

23

necessary or convenient to effect the transfer, including the execution of

any instrument. Buying out other

interests in

forfeited

property

29. Where a person is, in terms of this Part, authorised to take

transfer of any interest in property which is forfeited to the United

Republic, he may, on giving notice to any other person otherwise

interested in the property immediately before the forfeiture took place,

purchase that other interest from the Treasury Registrar; save that the

persons served with the notice may, within twenty-one days of the

receipt of the notice, lodge with the Minister a written objection to the

purchase of that interest. Forfeiture where

person cannot be

brought before

court

30-(1) Where the Attorney-General suspects on reasonable

grounds that any person has acquired, holds or is dealing with tainted

property and it is not possible-

(a) for any person to bring the person before before a court on

a charge for any court serious offence; or

(b) for a foreign pecuniary penalty order or a foreign forfeiture

order to be made in respect of the person, he may apply to the High Court for an order to declare the

property forfeited to the United Republic. (2) The High Court may, on an application in terms of subsection

(1), if it is satisfied that the property concerned is tainted property and

that it is in the interests of justice that the property be forfeited to the

United Republic, order accordingly.

PART V

CONTROL OF PROPERTY LIABLE TO CONFISCATION Powers of Search

and Seizure 31.-(1) Subject to subsection (2) a police officer may search a

person for, and seize, any property which he believes, on reasonable

grounds, to be tainted property.

(2) The search or seizure referred to in subsection (1) shall be

made-

(a) with the consent of the person concerned;

(b) under warrant issued under section 32; or

(c) in emergencies in accordance with section 34.

(3) Subject to subsection (2), a police officer may enter upon any

land or upon or into premises, search the land or premises for tainted

property and seize any property found in the course of the search which

the officer believes, on reasonable grounds, to be tainted property. (4) In conducting a search in terms of this section, a police officer

may also search the clothing that is being worn by the person and any

property under or apparently under the person's immediate control; save

that nothing contained in this section shall be construed as authorising a

police officer to carry out a search by way of an examination of body

24

cavities. Act No. 15

Of 2007

s. 11

Freezing of

an account 31A. Where the Inspector General of Police or the

Director of Criminal Investigation suspects on reasonable

grounds that any person has been involved in the

commission of a serious offence, a predicate offence or

money laundering he may authorize and direct a police

officer of the rank of Assistant Superintendent of Police or

above to freeze a bank account and seize any document from

that bank or financial institution for seven days during which

leave of the court for continued seizure shall be obtained. Search warrants

in relation to

tainted property

32.-(1) Where a police officer has reasonable grounds for

believing that there is tainted property of a particular kind on a person,

his clothing or under his immediate control, or upon any land or upon or

in any premises, he may apply to a magistrate for the issue of a search

warrant for the tainted property.

(2) On an application in terms of subsection (1), a police officer

shall lay before the magistrate information on oath setting out the

grounds upon which the warrant is sought and the magistrate may,

subject to subsection (4), issue a warrant authorising a police officer- (a) in the case of a search warrant in respect of land or

premises, to enter upon the land, or upon or into the

premises;

(b) to search for the tainted property; and

(c) to seize property found in the course of the search which

the police officer on reasonable grounds believes to be

tainted property. (3) A search warrant may be issued in terms of subsection (2) in

relation to tainted property whether or not information has been laid

before the magistrate in respect of the relevant offence.

(4) A magistrate shall not issue a warrant in terms of this section

unless he is satisfied that- (a) there are reasonable grounds for issuing the warrant; and

(b) where information has not been laid before him in respect

of the relevant offence at the time of the application for the

warrant- (i) the property is tainted property; and

(ii) information will be laid before him in respect of

the relevant offence within forty-eight hours. (5) A warrant issued in terms of this section shall specify–

(a) the purpose for which the warrant is issued, including the

nature of the relevant offence;

(b) the kind of property authorised to be seized;

(c) the date on which the warrant shall cease to have effect;

and

(d) the time during which entry upon any land or premises is

authorised.

25

(6) If in the course of searching under a search warrant issued in

terms of this section for tainted property in relation to a particular

offence, a police officer finds- (a) property which he believes on reasonable grounds to be

tainted property in relation to the offence, although not of a

kind specified in the warrant; or

(b) tainted property relating to another serious offence; or

(c) anything that the police officer believes, on reasonable

grounds, will afford evidence as to the commission of a

criminal offence,

and the police officer believes, on reasonable grounds, that it is

necessary to seize that property or thing in order to prevent its

concealment, loss or destruction, or its use in committing or

continuing or repeating the offence or any other offence, the

warrant shall be deemed to authorise the police officer to seize

that property or thing. (7) A police officer acting in accordance with a warrant issued in

terms of this section may require a person to remove any clothing that the

person is wearing but only if the removal of the clothing is necessary and

reasonable for an effective search of the person.

(8) A person shall not be searched in terms of this section except

by a person of the same sex and with strict regard to decency. Search warrant

may be granted

by telephone

33.-(1) Where, by reason of circumstances of urgency, a police

officer considers it necessary to do so he may apply for a search warrant

to a magistrate by telephone.

(2) Before making the application referred to in subsection (1),

the police officer shall prepare the information referred to in section

32(2).

(3) On an application in terms of subsection (1), a magistrate

may, if satisfied after considering the information referred to in

subsection (2) or any other information he may receive concerning the

grounds upon which the issue of the search warrant is sought, that there

are reasonable grounds for issuing the warrant, he shall issue the warrant

and record thereon the reason for granting it. (4) Where a magistrate has issued a warrant in terms of

subsection (3), he shall inform the police officer of the terms of the

warrant and the date on which and the time at which it was signed and

the police officer shall in turn complete a form of warrant in terms

furnished by the magistrate, including the name of the magistrate.

(5) Not later than the day next following the date of the execution

of the warrant or the expiry of the warrant, whichever is the earlier, the

police officer shall give the magistrate who authorised the warrant the

form of the warrant completed by him and the information in connection

with the warrant, duly sworn.

(6) On receipt of the documents referred to in subsection (5), the

26

magistrate shall attach to them the warrant signed by him and deal with

the documents in the manner in which he would have dealt with them

had the application been made in terms of section 32.

(7) A form of warrant duly completed by a police officer in

accordance with subsection (4) shall be authority for any search, entry or

seizure. Searches in

emergencies

34. A police officer may search a person for tainted property or

enter upon land or into premises and search for tainted property and may

seize any tainted property he finds in the course of the search if-

(a) he believes on reasonable grounds that it is necessary to do

so in order to prevent the concealment, loss or destruction

of the tainted property; and

(b) the search, entry or seizure is made in circumstances of

such seriousness and urgency as to require and justify

immediate search, entry or seizure without the authority of

an order of the court or a warrant issued in terms of this

Act. Responsibility

for seized

property

35. Where property is seized in terms of this Part, the Inspector-

General of Police or other officer authorised by him in writing, shall

arrange for the property to be kept and shall ensure that all reasonable

steps are taken to preserve it while it is so kept until it is required for the

purposes of this Act or disposed of in terms of this Act. Return of seized

property 36.-(1) Where property has been seized in terms of this Part and-

(a) it appears that the property was seized otherwise than

because it may afford evidence of the commission of an

offence;

(b) at the end of the period of forty-eight hours after its

seizure, the matter has not been laid before a magistrate; or

(c) no forfeiture order is made in respect of the property

within fourteen days after the conviction of a person in

connection with the property,

(d) any person who claims an interest in the property may

apply to the court for an order that the property be returned

to him. (2) Where an application for an interdict or a forfeiture order in

respect of property seized in terms of this Part is refused, the Inspector-

General of Police shall arrange for the property to be returned to the

person from whose possession it was seized as soon as practicable after

the refusal of the application. Search for and

seizure of tainted

property in

. 37.-(1) Where a police officer is authorised under the Mutual

Assistance Act to apply to a magistrate for a search warrant under this

27

relation to

foreign offences Act in relation to tainted property in respect of a foreign specified

offence, the provisions of this Part shall, mutatis mutandis, apply in

relation to the application for the search warrant.

(2) If, in the course of searching for tainted- (a) any property which he believes, on reasonable grounds, to

be tainted property in relation to the foreign specified

offence although not of the kind specified in the warrant;

(b) any property which he believes, on reasonable grounds, to

be tainted property in relation to another foreign specified

offence in respect of which a search warrant is in force; or

(c) any thing which he believes, on reasonable grounds- (i) to be relevant to criminal proceedings in

the foreign country in respect of the

foreign specified offence; or

(ii) will afford evidence as to the commission

of a criminal offence, and he believes, on

reasonable grounds, that it is necessary to

seize that property or thing in order to

prevent its concealment, loss or

destruction, or its use in committing,

continuing or repeating the offence or

any other offence, the warrant shall be

deemed to authorise the police officer to

seize that property or thing.

(3) Any person who claims an interest in property seized under a

warrant issued in respect of a foreign specified offence may apply to

court for an order that the property be returned to him.

(4) On an application in terms of subsection (3), if the court is

satisfied that-

(a) the person is entitled to the property; and

(b) the property is not tainted property in relation to the

foreign specified offence, the court shall order the Inspector-General of Police to return the

property to that person. (5) Where property has been seized in respect of foreign specified

offence and, at the end or thirty days after the day on which the property

was seized- (a) neither a foreign interdict nor a foreign forfeiture order in

relation to the property has been registered in accordance

with the Mutual Assistance Act; and

(b) an interim restraining order has not been issued in terms of

this Act in relation to the foreign specified offence,

the Inspector-General of Police shall arrange for the property to

be returned to the person from whose possession it was seized as

soon as practicable after the expiry of that period.

28

Restraining

orders

38-(1) Where a person has been convicted of a serious offence or

has been or is about to be charged with a serious offence, the Attorney-

General may apply to a court for a restraining order in terms of this Part

against all or any specified property of that person including property

acquired after the issue of the restraining order and property of a person

other than the person convicted. (2) On an application in terms of subsection (1), the court may,

subject to section 39-

(a) order that the property specified in the application shall not

be disposed of, or otherwise dealt with, by any person

except in the manner and in the circumstances specified in

the order; or

(b) if it is satisfied that the circumstances so require, direct

that the property or such part of the property as is specified

in the order, be taken into the custody and control of a

trustee appointed for that purpose by the court. (3) A restraining order against a person's property may be granted

subject to such conditions as the court thinks fit and may make provision

for meeting out of the property-

(a) that person's reasonable living expenses, including the

reasonable living expenses of his dependants and

reasonable business expenses;

(b) that person's reasonable expenses in defending a criminal

charge; and

(c) a specified debt incurred by that person in good faith,

being a debt to which neither paragraph (a) nor (b) applies. (4) A court shall not make any provision referred to in subsection

(3) unless it is satisfied that the defendant cannot meet the expense or

debt concerned out of property that is not subject to the interdict.

(5) Where a trustee takes charge of any property in terms of this

section, he may do anything that is reasonably necessary for the purpose

of preserving the property, including- (a) becoming a party to any civil proceedings affecting the

property;

(b) ensuring that the property is insured; and

(c) if the property consists, in whole or in part, of a business,

employing or terminating the employment of persons in

the business. Grounds for

issuing a

restraining order

39.-(1) Where the offence concerned is a specified offence, the

court shall, subject to this section, issue a restraining order against the

property.

(2) Where the offence concerned is a serious offence other than a

specified offence, the court shall, subject to this section, issue an interdict

against the property unless the court is satisfied that it is not in the public

interest to make such an order.

29

(3) Where the defendant has not been convicted of the offence

concerned, the court shall not issue a restraining order unless- (a) the application for the interdict is supported by an affidavit

of a police officer stating that he believes that the

defendant committed the offence; and

(b) the court is satisfied, having regard to the matters

contained in the affidavit, that there are reasonable grounds

for holding that belief. (4) Where the application is made pending the charging of the

defendant with the offence concerned, the court shall not issue a

restraining order unless it is satisfied that the defendant will be charged

with the offence or a related offence within forty-eight hours.

(5) Where the offence concerned is a serious offence other than a

specified offence, the court shall not issue a restraining order against the

property of the defendant unless- (a) the application is supported by an affidavit of a police

officer stating that he believes that- (i) the property is tainted property; or (ii) the defendant derived a benefit, directly or

indirectly, from the commission of the

offence; and (b) the court is satisfied, having regard to the matters

contained in the affidavit, that there are reasonable grounds

for holding that belief. (6) Where a restraining order is sought against a person other than

the defendant, the court shall not issue the restraining order unless- (a) the application is supported by an affidavit of a police

officer stating that he believes that– (i) the property is tainted property in relation

to the offence; or

(ii) the property is subject to the effective

control of the defendant who derived a

benefit, directly or indirectly, from the

commission of the offence; and (b) the court is satisfied, having regard to the matters

contained in the affidavit, that there are reasonable grounds

for holding that belief. (7) In determining whether there are reasonable grounds to

believe that property is in the effective control of the defendant, the court

may have regard to the matters referred to in subsection (2) of section 23.

(8) A restraining order shall be granted in respect of property

whether or not there is any risk of the property being disposed of, or

otherwise dealt with, in such manner as would defeat the operation of

this Act.

(9) A court may refuse to grant a restraining order if the Republic

fails to give the court such undertakings as the court considers

30

appropriate with respect to the payment of damages of costs in relation to

the granting and operation of the order. (10) An affidavit made by a police officer for the purposes of this

section shall set out the grounds on which the officer holds any particular

belief. Notice of

application for

restraining order

40. Subject to subsection (2), the Attorney-General shall give

written notice of an application for a restraining order against property

to-

(a) the owner of the property; and

(b) any other person whom he has reason to believe may have

an interest in the property. (2) The court may grant a restraining order notwithstanding that

no notice of the application has been given in terms of subsection (1) if it

is satisfied that- (a) circumstances of urgency require the granting of the order;

or

(b) it would be contrary to the public interest to give notice of

the application,

but, subject to subsection (3), a restraining order granted in terms

of this subsection shall cease to have effect at the end of such

period, not exceeding fourteen days, as may be specified by the

court. (3) The court may, on application by the Attorney-General before

the expiry of the period referred to in subsection (2), extend the period of

operation of the restraining order granted in terms of that subsection if

the court is satisfied that there are circumstances justifying the extension

and the owner of the property or any other person who may have an

interest in the property shall be notified in writing of the application in

terms of this subsection.

(4) The court may at any time before the final determination of an

application for a restraining order or an extension of the period of

operation of a restraining order, direct the Attorney-General to give or

publish notice of the application to a specified person or class of persons,

in such manner and within such time as the court may fix. Persons who may

appear and

adduce evidence

41. Where the Attorney-General has, in terms of section 40,

given notice of an application for a restraining order or for the extension

of the period of operation of a restraining order, any person who claims

an interest in the property may appear and adduce evidence at the hearing

of the application. Notice of

restraining orders

42.-(1) Subject to subsection (2), where a restraining order is

made against a person's property, the Attorney-General shall give the

person written notice of the order.

(2) Where a court makes a restraining order, but it is satisfied that

31

it would be in the public interest to delay giving notice of the order to a

person, the court may order that giving the person notice of the

restraining order be delayed for such period as is specified in the order

under subsection (1) and the Attorney-General shall give the person

notice of the restraining order as soon as practicable after the end of the

period specified. Court may make

further orders 43.-(1) Where a court grants a a restraining order, it may, at the

time it makes the order or at any later time, make any ancillary order

which it may consider necessary, including- (a) an order varying the property to which the restraining

order relates;

(b) an order varying any condition to which the restraining

order is subject;

(c) an order for the examination on oath of the person (in this

section called the "respondent") whose property is subject

to the restraining order, or any other person, concerning

the affairs of the respondent, including the nature and

location of the property of the respondent; or (d) an order for the carrying out of any undertaking given by

the United Republic in relation to the payment of damages

or costs arising from the granting of the restraining order;

or

(e) where the property is in the custody or under the control of

a trustee-

(i) an order directing the manner in which the

trustee may exercise his powers or perform his

duties in relation to the property; or

(ii) an order determining any question relating to

the property including any question relating to

the liabilities of the respondent;

(iii) an order directing the respondent to furnish the

trustee, within a specified period, with a statement

setting out such particulars of the property as the

court may think proper.

(2) An order under subsection (1) may be made on application

by- (a) the Attorney-General;

(b) the respondent;

(c) the trustee; or

(d) with the leave of the court, any other person,

(e) and every person with an interest in the matter shall be

notified by the applicant, in writing, of the application. (3) Any person having an interest in property which is the subject

32

of a restraining order may apply to a court for the variation of the

restraining order to exclude the person's interest from the order and the

court shall grant such application- (a) if the offence concerned is not a specified offence and the

interest is not tainted property; or

(b) where the offence concerned is a specified offence, if it is

satisfied that– (i) the applicant was not in any way involved in the

commission of the offence; and

(ii) the interest in the property was acquired for sufficient

value, without knowledge, and in circumstances such

as not to arouse a reasonable suspicion that the

property was tainted property. (4) An application in terms of subsection (3) may be granted by

the court if the court is satisfied that it is in the public interest to do so

having regard to all the circumstances of the case including- (a) any financial hardship or other consequence of the interest

remaining subject to the restraining order;

(b) the seriousness of the offence; and

(c) the likelihood that the interest may be subject to a

forfeiture order or to section 25 or be required to satisfy a

pecuniary penalty order. (5) A person who has been convicted of or has been charged or is

about to be charged with, a specified offence and whose property is

subject to a restraining order may apply to a court for the exclusion of

any property from the restraining order and the court shall grant the

application if it is satisfied that– (a) the property was not used in, or in connection with, the

commission of the offence; and

(b) the interest in the property was lawfully acquired. (6) Where a person is examined before a court pursuant to an order under

subsection (1), the person shall not be excused from answering any

question on the ground that the answer might tend to incriminate him or

make him liable to a penalty.

(7) Where a person other than a person against whom charges

have been or are to be laid is examined before a court pursuant to an

order under subsection (1), a statement or disclosure made by that person

in answer to a question put in the course of the examination, and any

information, document or thing obtained as a direct or indirect

consequence of the statement or disclosure, shall not be admissible

against him in any criminal proceedings except proceedings for giving

false testimony in the course of examination.

(8) For the purposes of subsection (7), proceedings on an

application for a restraining order, a forfeiture order or a pecuniary

penalty order shall not be regarded as criminal proceedings. (9) Where the Attorney-General applies to court for an order

33

under subsection (1), a witness shall not be required to answer a question

or to produce a document if the court is satisfied that answering of the

question or production of the document may prejudice the investigation

of, or the prosecution of any person for, an offence. Trustee to

discharge

pecuniary

penalty order

44.-(1) Where a court has made a pecuniary penalty order against

a person whose pecuniary property is in the custody or under the control

of a trustee, the court may direct the trustee to pay to the United Republic

an amount equal to the penalty amount out of the property held by him. (2) The court may, for the purposes of subsection (1), direct the

sale or otherwise dispose of any of the property in the custody of the

trustee or under his control and authorise him to execute any deed or

instrument in the name of the person who owns or has an interest or right

in the property. (3) The trustee shall not apply any money in terms of subsection

(1) or dispose of any property in terms of subsection (2) until any appeal

lodged in relation to the matter has been determined or the time for

lodging any appeal has lapsed without any appeal having been lodged. Charge on

property subject

to restraining

order

45.-(1) Where–

(a) a pecuniary penalty order is made against a person in

reliance on his conviction of an offence; and

(b) a restraining order is or has been made against his property

or the property of another person in relation to which an

order under section 23(3) is, or has been, made in reliance

on his conviction of the offence or a related offence or in

reliance on his being charged, or proposed charging, with

the offence or a related offence,

then, upon the making of the later of the orders there shall be

created, by virtue of this section and without any further

assurance, a charge on the property to secure the payment to the

United Republic of the penalty amount. (2) Where a charge is created by subsection (1) on property of a

person, the charge shall cease to have effect in respect of the property- (a) upon the quashing of the conviction in reliance on which

the pecuniary penalty order was made;

(b) upon the discharge of the pecuniary penalty order or the

restraining order by a court hearing an appeal against the

making of the order;

(c) upon payment to the United Republic of penalty amount in

satisfaction of the pecuniary penalty order;

(d) upon the sale of the property to a purchaser in good faith

for value who, at the time of purchase, has no notice of the

charge, whichever occurs first.

34

(3) A charge created on property by subsection (1)– (a) shall be subject to every encumbrance on the property that

came into existence before the charge and that would, apart

from this subsection, have priority over the charge;

(b) shall have priority over all other encumbrances; and

(c) subject to subsection (2), shall not be affected by any

change of ownership of the property. (4) Where a charge is created by subsection (1) on property of a

particular kind and the provisions of any law in the United Republic

provide for the registration of title to, or charges over, property of that

kind, the Public Trustee or the Attorney-General, as the case be, may

cause the charge so created to be registered under the provisions of that

law and, if the charge is so registered, a person who purchases or

otherwise acquires an interest in the property after the registration of the

charge shall, for the purposes of subsection (2)(d), be deemed to have

notice of the charge at the time of the purchase or acquisition. Registration of

restraining orders

46. Where a restraining order has been of granted in respect of

immovable property or any property or interest in property that is subject

to registration, the Attorney-General shall apply to the appropriate

registrar for a recording in the register of the particulars of the restraining

order. Contravention of

restraining orders

. 47. Every person who disposes of, or otherwise deals with,

property which to his knowledge is subject to a restraining order shall be

guilty of an offence and liable- (a) in the case of an individual, to a fine not exceeding five

hundred thousand shillings or the value of the property,

whichever is the greater, or to imprisonment for a period

not exceeding fifteen years, or to both that fine and that

imprisonment; or

(b) in the case of a body corporate, to a fine not exceeding five

million shillings or three times the value of the property,

whichever is the greater. (2) Any unauthorized dealing with property which is subject to a

restraining order may be set aside by the court at the instance of the

Attorney-General Duties of trustee 48.-(1) If, after a trustee has been directed to pay a pecuniary

penalty out of the property of a person, the trustee is given notice in

writing of proceedings in terms of the law for the time being in force in

relation to insolvency against the person, he shall not take any action to

sell or otherwise dispose of any property or pay the United Republic any

money until the proceedings have been disposed of. (2) Where a person whose property is in the custody or under the

control of a trustee becomes insolvent, the property shall be deemed to be

35

in the possession or under the control of the trustee as, or on behalf of,

the trustee of the estate of the insolvent person. Protection of

trustee from

personal liability

49.-(1) A trustee shall not be personally liable for-

(a) any loss or damage arising from his having taken custody

or control of the property which is sustained by any person

claiming the property or an interest in the property unless

the court in which the claim is made is of the opinion that

the trustee is guilty of negligence in respect of the taking

of custody or control of the property; or

(b) the cost of proceedings instituted to establish a claim to the

property or an interest in the property. (2) A trustee shall not be personally liable for any rate or tax due

under any enactment in respect of property which is in his custody or

under his control. Remuneration

and expenses of

trustee

50.-(1) A trustee shall be entitled to remuneration and expenses in

respect of the performance of his duties in relation to property in his

custody or under his control.

(2) The Minister shall by regulations published in the Gazette

provide for or in respect of the remuneration and expenses of a trustee in

relation to the performance of his duties under this Act. Court may

revoke

restraining orders

51.-(1) A court may, on application by a person against whom a

restraining order has been issued, revoke the order if the person gives

security to the satisfaction of the court for the payment of any pecuniary

penalty that may be imposed upon him.

(2) A person who makes an application in terms of subsection (1)

shall notify the Attorney-General and, where the property is in the

custody or under the control of a trustee, the trustee. When restraining

order ceases to

have effect

52.-(1) A restraining order shall cease to have effect if the charge

against the person in relation to whom the order was issued is withdrawn

or if the person is acquitted.

(2) Where a court has made a confiscation order, a restraining

order shall cease to have effect once the confiscation order is satisfied or

otherwise discharged.

Interim

restraining order

in respect of

foreign offence

53.-(1) Where the Attorney-General is authorised under the

Mutual Assistance Act to obtain the issue of a restraining order in terms

of this act in respect of a foreign specified offence, the provisions of this

Part relating to the application for a restraining order shall, mutatis

mutandis, apply in relation to the application for a restraining order in

respect of the foreign specified offence.

(2) A restraining order, granted in respect of a foreign specified

offence shall cease to have effect on the expiry of a period of thirty days

36

commencing on the day on which the order was granted.

(3) On application by the Attorney-General before the expiry of

the period referred to in subsection (2), a court may extend the period of

operation of the restraining order.

(4) Where a foreign restraining order is not registered the High

Court in terms of the Mutual Assistance Act, before the expiry of the

period referred to in subsection (2) or (3), the order referred to in

subsection (1) shall cease to have effect.

Registered

foreign

restraining orders

54. Where a foreign restraining order has been registered with

the High Court in terms of the Mutual Assistance Act, the provisions of

this Part relating to restraining orders shall, subject to sections 55 and 56

mutatis mutandis, apply in relation to registered foreign interdicts or

restraining orders. Trustee to take

control of

property in

relation to

registered

foreign

restraining order

55. (1) Where a foreign restraining order has been registered in

the United Republic, the court may, upon application by the Attorney-

General, direct that the property, or any part of the property, be taken

into the custody of or under the control of a trustee appointed by the

court.

(2) The owner of the property or any other person whom the

Attorney-General has reason to believe may have an interest in the

property shall be notified in writing of any application in terms of

subsection (7).

(3) The court may, before making a direction in terms of

subsection (1), direct the Attorney-General to give or publish notice of

the application to a specified person or class of persons, in such manner

and within such time as the court considers appropriate.

(4) Any person who claims an interest in property in respect of

which an application in terms of subsection (1) has been made may

appear and adduce evidence at the hearing of the application.

(5) Where a direction in terms of subsection (1) has been made,

the court may at any time make any one or more of the following orders-

(a) an order regulating the manner in which the trustee may

exercise his powers or perform his duties;

(b) an order determining any question relating to that property;

or

(c) an order directing the owner of the property to furnish the

trustee with such particulars relating to the property as the

court thinks fit.

(6) A trustee may do anything that is reasonably necessary for the

purpose of preserving the property, including-

(a) becoming a party to any civil proceedings relating to or

affecting the property;

(b) ensuring that the property is insured; and

(c) if the property consists, in whole or in part, of a business,

37

employing or terminating the employment of persons in

the business. Undertaking by

the Attorney-

General

56. The court may, on application by any person claiming an

interest in property which is subject to a foreign restraining order and

which is in the custody of or under the control of a trustee, make an order

requiring the Attorney-General to give or carry out the undertaking with

respect to the payment of damages or costs in relation to that foreign

restraining order.

Discharge of

registered

foreign

pecuniary

penalty

57.-(1) Where–

(a) a foreign restraining order is registered in the United

Republic in respect of property of a person convicted of or

alleged to have committed, a foreign specified offence;

(b) a foreign pecuniary penalty order against the person is

registered in the United Republic in relation to the matter;

and

the property is in the custody, or under the control, of a trustee, the court in which the foreign pecuniary penalty order is registered may

direct the trustee to pay to the United Republic an amount equal to the

penalty amount out of the property. (2) For the purposes of subsection (1) the court may- (a) direct the trustee to sell or otherwise dispose of such of the

property under his control as the court may specify; and

(b) authorise the trustee to execute any deed or instrument in

the name of the person who owns or has an interest or right

in the property.

PART VI

INFORMATION GATHERING POWERS

Production

Orders 58.-(1) Where a person has been convicted, or is reasonably

suspected of having committed, a serious offence and a police officer has

reasonable grounds for suspecting that any person has possession or

control of any property-tracking document in relation to that offence he

may apply to a court for an order directing the person, subject to

subsection (5), to produce to a police officer any document described in

the order which is in that person's possession or control. (2) An application in terms of subsection (1) shall be supported

by an affidavit setting out the grounds upon which the suspicion is based. (3) Where, in an application for an order in terms of subsection

(1), a police officer includes in the affidavit referred to in subsection (2)

information that he has reasonable grounds to believe that the person

concerned derived a benefit, directly or indirectly, from the commission

of the offence and that the property specified in the affidavit is subject to

the effective control of the person, the court may treat any document

relevant to identifying, locating or quantifying that property as a

38

property-tracking document in relation to the offence for the purposes of

this section. (4) In determining in terms of subsection (3) whether to treat a

document as a property-tracking document in relation to an offence, a

court may have regard to matters referred to in subsection (2) of section

25.

Act No. 15

of 2007

S.12

(5) An order for the production of documents shall not be made

unless the court is satisfied that there are reasonable grounds for making

the order. (6) Where a document is produced to a police officer, the police officer

may–

(a) inspect the document;

(b) take extracts from the document;

(c) make copies of the document; or

(d) retain the document if, and for as long as, retention of the

document is reasonably necessary. (7) A police officer referred to in subsection (6) shall, at the

request of the person to whom the order was addressed- (a) give the person a copy of the document certified by the

police officer in writing to be a true copy of the document;

or

(b) permit the person to- (i) inspect the document;

(ii) take extracts from the document, or

(iii) make copies of the document. (8) A person shall not be excused from producing a document on

the ground that its production-

(a) might tend to incriminate him or make him liable to a

penalty; or

(b) would be in breach of any obligation or privilege not to

disclose the existence or contents of the document. (9) The production of a document in terms of this section or any

information, document or thing obtained as a direct or indirect

consequence of the production of the document, shall not be admissible

against any person, other than the person against whom charges have or

are to be laid, in any criminal proceedings except proceedings relating to- (a) a contravention of an order of the court; or

(b) the production of a document known to the person to be

false or misleading in a material particular. (10) For the purposes of subsection (9) proceedings on an

application for a restraining order, a forfeiture order or a pecuniary

penalty order shall not be regarded as criminal proceedings. Variation of

production order 59. Where a court makes a production order requiring a person to

produce a document to a police officer, that person may apply to the

court for a variation of the order and if the court is satisfied that the

39

document is essential to the business activities of the person, it may vary

the production order so as to require the person to make the document

available to the police officer for inspection Failure to

comply with

production order

60.-(1) Where a person is required by a production order to

produce a document to a police officer or make a document available to a

police officer for inspection, that person shall be guilty of an offence

under this section if he- (a) contravenes the order without reasonable excuse; or

(b) in purported compliance with the order produces or makes

available a document known to them to be false or

misleading in a material particular without- (i) indicating to the police officer to whom the document is

produced or made available that the document is false or

misleading and the respect in which the document is false

or misleading; and

(ii) providing correct information to the police officer if the

person is in possession of, or can reasonably acquire, the

correct information. (2) An offence against subsection (1) shall be punishable, upon

conviction, by- (a) if the offender is a natural person, a fine not exceeding one

million shillings or imprisonment for a term not exceeding

five years, or both that fine and imprisonment; or

(b) if the offender is a body corporate, a fine not exceeding

five million shillings. Production

orders in relation

to foreign

offences

61.-(1) Where a police officer is authorised in terms of the

Mutual Assistance Act, to apply to court for a production order under this

Act in respect of a foreign specified offence, he may apply for an order

and sections 63 and 64 shall, mutatis mutandis, apply in respect of the

foreign specified offence.

(2) Where a police officer takes possession of a document under a

production order made in respect of a foreign specified offence, he may

retain the document for a period of one month pending a written

direction from the Attorney General as to the manner in which the

document is to be dealt with, which may include a direction that the

document be sent to an authority of the foreign country which requested

obtaining of the production order. Search Powers

62.-(1) A police officer may enter upon any land or into any

premises and-

(a) search the land or premises for any property-tracking

document in relation to a serious offence; and

(b) seize any document found in the course of the search

which he believes, on reasonable grounds, to be a

40

property-tracking document in relation to the serious

offence.

(2) Entry by a police officer shall be made with the consent of

the occupier of the land or premises or under a warrant issued in terms of

section 68. Search warrant

for property-

tracking

document

63.-(1) Where a person has been convicted of, or is reasonably

suspected of having committed, a serious offence, and a police officer

has reasonable ground for suspecting that there is upon any land or upon

or in any premises, a property-tracking document in relation to the

offence, that police officer may apply to a court for a search warrant in

respect of the land or premises and the court may subject to subsection

(5), issue a search warrant authorising a police officer, with such

assistance as is necessary- (a) to enter upon the land or into premises specified in the

warrant to search for documents described in the warrant;

and

(b) to seize any document found in the course of the search

that the police officer believes, on reasonable grounds, to

be a property-tracking document. (2) An application in terms of subsection (1) shall be supported

by an affidavit setting out the grounds upon which the suspicion is based.

(3) Where, in an application for a warrant in terms of subsection

(1), a police officer includes in the affidavit referred to in subsection (2)

information that he has reasonable grounds to believe that the person

concerned derived a benefit, directly or indirectly, from the commission

of the offence and that the property specified in the affidavit is subject to

the effective control of the person, the court may treat any document

relevant to identifying, locating or quantifying that property as a

property-tracking document in relation to the offence for the purposes of

this section. (4) In determining, in terms of subsection (3), whether to treat a

document as a property-tracking document in relation to an offence, the

court may have regard to the matters referred to in subsection (2) of

section 23.

(5) A search warrant shall not be issued in terms of this section

unless the court is satisfied that– (a) the document concerned cannot be identified or described

with sufficient particularity for the purposes of obtaining a

production order;

(b) a production order has been given in respect of the

document and has not been complied with;

(c) a production order is unlikely to be complied with;

(d) the investigation for the purposes of which the search

warrant is sought might be seriously prejudiced if the

police officer does not gain immediate access to the

41

document without notice to any person; and

(e) there are reasonable grounds for issuing the warrant. (6) The search warrant shall state- (a) purpose for which it has been issued, including the nature

of the serious offence which has been or is believed to

have been committed; (b) the time during which entry is authorised; (c) a description of the kind of documents authorised to be

seized; and

(d) a date, being not later than thirty days after the date of

issue of the warrant, on which the warrant shall cease to

have effect. (7) If, in the course of searching for a particular document in

relation to an offence, a police officer finds- (a) another document which is not of the kind described in the

warrant but which he believes, on reasonable grounds, to

be a property-tracking document in relation to the offence

concerned or a property-tracking document in relation to

another serious offence; or

(b) anything that he believes, on reasonable grounds, will

afford evidence as to the commission of an offence,

he may, if he believes on reasonable ground that is necessary to seize the

document or thing in order to prevent its concealment, loss or

destruction, seize the document or thing.

Investigation of

a bank account

Act No. 15

of 2007

s. 13

63A. –(1) Notwithstanding the provisions of any

other written law, the Inspector General of Police may,

where he considers that any evidence of the commission

of a serious offence, predicate offence or money

laundering by a person is likely to be found in a bank

account kept by that person, spouse or child or of any

person reasonably believed to be a trustee or agent of such

person, and that procedure for obtaining an order of the

court is likely to defeat the course for investigation,

authorize in writing, any police officer, of or above the

rank of Assistant Superintendent of Police either alone or

with any other officer, to investigate the bank account and

such authorization shall be sufficient to warrant the

production of the bank account for scrutiny by that police

officer and such officer may take copies of nay relevant

entries from account (2) Where in the course of investigation, it appears

necessary that a bank account be held for a period

exceeding seven days, the police officer referred to under

subsection (1) shall be required to obtain leave of the court

for continued holding of such bank account.

42

(3) Any person who, pursuant to the provisions of

subsection (1) fails to produce a bank account when

required to do so or obstruct a police officer from

scrutinizing the bank account or take copies of any

relevant entries from that bank account commit an offence

and shall, on conviction, be liable to imprisonment for a

term not exceeding two years or to a fine of not less than

one million shillings or to both (4) In this section- “bank account” includes any ledger, log book, cash book,

and any other document used in the ordinary

course of business by any person carrying on,

whether on his own behalf or as an agent for

another, and whether exclusively or otherwise,

any banking business whatsoever, whether or not

such person is a bank within the meaning of the

Banking and Financial Institutions Act, 2005. 63B. For the purposes of obtaining evidence in

relation to serious offences, predicate offences or money

laundering, a police officer of the rank of Assistant

Superintendent of Police or above authorized as such ty

the Inspector General of police or the Director of Criminal

Investigations may with leave of the court- (a) have access to computer data systems,

networks and services; (b) place under surveillance means of

preservation of information including

facsimile machines electronic transmission

and communication facilities; (c) make audio or video recording of acts and

behaviors or conversations; and (d) have access to notarial and private deeds, or

financial institutions and commercial

records. Protection of

investigators 63C. No punishment shall be imposed to any

person investigating serious offence, predicate offence or

money laundering who, for the sole purpose of obtaining

evidence, performs in the manner specified, acts which

would rather be construed as elements constituting a

serious offence, a predicate offence or money laundering

or a conspiracy to commit a predicate offence or money

laundering Leave of the

court 63D. For purposes of obtaining leave of the court

pursuant to the provisions of sections 63A and 63B, it

shall be sufficient for the Inspector General of Police or

43

the Director of Criminal Investigation to file Chamber

application supported by affidavit whether or not there is

a pending case in the court. Search warrants

in relation to

foreign offences

64.-(1) Where a police officer is authorised in terms of the

Mutual Assistance Act to apply to a court for a search warrant under this

Act for a property-tracking document in respect of a foreign specified

offence, the police officer may apply for the warrant and section 63 shall,

mutatis mutandis, apply in respect of the application.

(2) Where a police officer takes possession of a document under a

warrant in respect of a foreign specified offence, he may retain it for a

period not exceeding thirty days pending a written direction from the

Attorney-General as to the manner in which the document is to be dealt

with, which may include a direction that the document is to be sent to an

authority of the foreign country that requested the issue of the warrant. Monitoring

Orders 65.-(1) The Director of Public Prosecutions may apply to a court

for a monitoring order directing a financial institution to give information

to the Inspector-General of Police about financial transactions conducted

through an account held by a particular person with that financial

institution.

(2) A monitoring order shall apply in relation to financial

transactions conducted during the period specified in the order.

(3) A court shall not make a monitoring order unless it is satisfied

that there are reasonable grounds for suspecting that the person in respect

of whose account the information is sought– (a) has committed or is reasonably suspected of having

committed a specified offence;

(b) was involved in the commission of or is reasonably

suspected of having been involved in the commission of, a

specified offence; or (c) has benefited, directly or indirectly, from the commission

of a specified offence. (4) A monitoring order shall specify the name or names in which

the account is believed to be held and the type of information that the

financial institution is required to give.

(5) Any financial institution which contravenes a monitoring

order or provides false or misleading information shall be guilty of an

offence and liable to a fine not exceeding one million shillings. Existence and

operation of

monitoring order

not to be

disclosed

66.-(1) A financial institution that is or has been subject to a

monitoring order shall not disclose the fact to any person except a legal

practitioner for the purpose of obtaining legal advice or representation in

relation to the order.

(2) The Inspector-General of Police shall not disclose to any

person other than a member of the Police Force in the performance of his

44

duties, the existence of a monitoring order. (3) The Inspector-General of Police shall not be required by any

court to disclose the existence of a monitoring order.

(4) Any person who contravenes this section shall be guilty of an

offence and liable to- (a) in the case of an individual, a fine not exceeding two

hundred thousand shillings or to imprisonment for a period

not exceeding ten years or to both that fine and

imprisonment;

(b) in the case of a body corporate, to a fine not exceeding one

hundred thousand shillings. Monitoring

orders in relation

to foreign

offences

67.-(1) Where a police apply to a court for a monitoring order

under this Act in respect of a foreign specified offence, section 66 shall,

mutatis mutandis, apply in respect of the foreign specified offence.

(2) Where the Inspector-General of Police is informed pursuant to

a monitoring order made in relation to a foreign specified offence, he

shall forthwith pass the information on to the Attorney-General. Obligations of

Financial

Institutions

68. [Repealed, Act No. 15 of 2007, S. 14]

69. [Repealed, Act No. 15 of 2007 S. 15] . 70. [Repealed, Act No. 15 of 2007 S. 16]

PART VII

MISCELLANEOUS PROVISIONS

Obstruction of

justice prohibited 71.-(1) Any person who uses physical force, threat, intimidation,

promises, offers or gives an undue advantage in order to-

Act No. 15

of 2007

s. 17

(a) induce false testimony;

(b) interfere with the giving of testimony or the production of

evidence in a proceeding; or

(c) interfere with the exercise of official duties by a

magistrate, judge, public prosecutor, state attorney or any

law enforcement official in relation to the commission of

offences under this Act, commits an offence and shall, on

conviction, be liable to imprisonment for a term of not less

than five years. Prohibition in

dealing in tainted

property

72.-(1) No person shall acquire, hold or in any other way deal in

any tainted property.

(2) Any tainted property in relation to a foreign specified offence

acquired, held or dealt with in contravention of this section shall be liable

to be forfeited to the United Republic by order of the High Court on

45

application by the Attorney-General. Conduct of

directors,officers,

employees or

agents

73.-(1) For the purposes of this Act, where it is necessary to

establish the state of mind of a body corporate in respect of conduct

engaged in or deemed, in terms of subsection (2), to have been engaged

in, by the body corporate, it shall be sufficient to show that a director,

officer, employee or agent of the body corporate, being a director,

employee or agent by whom the conduct was engaged in the course of

his employment, had that state of mind. (2) Any conduct engaged in on behalf of a body corporate by- (a) a director, officer, employee or agent of the corporate body

in the course of his employment; or (b) any other person at the direction or with the consent,

whether express or implied, of a director, employee or

agent of the body corporate, where the giving of the

direction or consent is within the scope of authority of the

director, officer, employee or agent,

shall, for the purposes of this Act, be deemed to have been

engaged in by the body corporate. (a) an employee or agent of the person within the scope of his

authority; or

(b) any other person at the direction or with the consent,

whether express or implied, of an employee or agent of the

first-mentioned person, where the giving of the direction or

consent is within the scope of authority of the employee or

agent,

shall, for the purposes of this Act, be deemed to have been

engaged in by the first-mentioned person. (4) Where it is necessary to establish the state of mind of a

person in relation to conduct deemed in terms of subsection (3) to have

been engaged in by that person, it shall be sufficient to show that the

employee or agent of that person, being an employee or agent by whom

the conduct was engaged in within the scope of his authority, had that

state of mind. (5) Any reference in this section to the state of mind of a person

includes a reference to the knowledge, intention, opinion, belief or

purpose of that person and that person's reasons for that intention,

opinion, belief or purpose. Dealings with

forfeited

property

74.-(1) A person who knows that a forfeiture order has been made

in respect of registrable property shall not, unless the forfeiture order has

been discharged, disposed of, or otherwise deal with the property before

the interest of the United Republic has been registered in the appropriate

register.

(2) A person who contravenes or fails or refuses to comply with

subsection (1) shall be guilty of an offence and liable on conviction-

46

(a) if he is an individual to a fine not exceeding two hundred

thousand shillings or imprisonment for a period not

exceeding five years or to both the fine and imprisonment;

(b) if the person is a body corporate, to a fine not exceeding

five million shillings. Standard of proof

75. Subject to section 12, any question of fact to be decided by a

court on an application under this Act shall be decided on a balance of

probabilities.. Appeals

76.-(1) Any person who has an interest in property against which

a forfeiture order is made may appeal against that order- (a) in the case of a person convicted of the offence in reliance

on which the order was made, in the same manner as if the

order were, or were part of, a sentence imposed on the

person in respect of the offence; or

(b) in any other case, in the same manner as if the person had

been convicted of the offence in reliance on which the

order was made and the order were, or were part of, a

sentence imposed on the person in respect of the offence.

(2) A person against whom a pecuniary penalty is made may

appeal against that order in the same manner as if it were, or were part of,

a sentence imposed on the person in respect of the offence in reliance on

which the order was made.

(3) Where a court makes a pecuniary penalty order, and makes an

order under section 23(3) declaring that particular property is available to

satisfy the order, any person who has an interest in the property may

appeal against the order under section 23(3) in the same manner as if the

person had been convicted of the offence in reliance on which the order

was made and the order were, or were part of, a sentence imposed on the

person in respect of the offence. (4) On an appeal against a forfeiture order, a pecuniary penalty

order or an order made under section 23(3), the order may be confirmed,

discharged or varied.

(5) The Attorney-General may appeal against a forfeiture order, a

pecuniary penalty order or an order under section 23(3) or against the

refusal by a court to make such an order in the same manner as if the

order were, or were part of, a sentence imposed in respect of the offence

in reliance on which the order was made.

(6) Nothing in this section shall be construed as affecting any

right of appeal that a person would have apart from this section. Costs

77. Where a person brings, or appears at, proceedings under this

Act before a court in order to-

47

(a) prevent a forfeiture order or restraining order from being

made against his property ; or

(b) to have his property excluded from a forfeiture order or

restraining order,

if he is successful in those proceedings, and the court is satisfied

that that person was not involved in any way in the commission

of the offence in respect of which the forfeiture order or

restraining order was sought or made, then the court may order

the Government to pay all costs incurred by that person in

connection with the proceedings or such part of these costs as is

determined by the court. Operation of

other laws not

affected

78. Nothing in this Act shall be taken as limiting or restricting

(a) the operation of any law of the United Republic or of the

Revolutionary Government of Zanzibar providing for the

forfeiture of property or the imposition of pecuniary

penalties; or

(b) the remedies available to the Government, apart from this

Act, for the enforcement of its rights and the protection of

its interests. Regulations

79. The Minister may make regulations for the better carrying

out of the purposes and provisions of this Act, and prescribing matters

which are- (a) required or permitted by this Act to be prescribed;

(b) necessary or convenient to be prescribed for carrying out

or giving effect to this Act.